IN THE CASE OF:
BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110010163
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his retired pay be corrected to show he retired as an O-3E (a captain with over four years enlisted service). He further requests payment of any unpaid retired pay due as a result of this correction.
2. The applicant states his retirement is being paid based on pay grade O-3 rather than O-3E. He served over 4 years as an enlisted Soldier and is entitled to this correction.
3. The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty); DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes) dated 7 January 2000; Orders 048-015, Fort Benning, Georgia, dated 17 February 2000; and Orders D259-39, Walter Reed Army Medical Center, dated 16 September 2009.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. A DA Form 1506 shows the applicant served on active duty as an enlisted Soldier during the following periods:
* 23 September 1986 - 20 June 1988: 1 year, 9 months, and 4 days
* 25 May 1993 - 15 December 1994: 1 year, 6 months, and 21 days
* 27 June 1997 - 26 January 1998: 7 months, and 2 days
* 27 January 1998 - 12 April 2000: 2 years, 2 months, and 16 days
* Total active duty enlisted service: 6 years, 1 month, and 13 days
3. Orders 048-015, Fort Benning, Georgia, dated 17 February 2000, discharged the applicant from the Regular Army in the rank of sergeant, pay grade E-5, effective 12 April 2000, for the purpose of accepting a commission in the U.S. Army Reserve.
4. Orders Number 227-003, U.S. Army Human Resources Command, dated
15 August 2003, promoted the applicant to captain, with an effective date and date of rank of 1 September 2003.
5. On 17 September 2004, the applicant was retired for temporary disability. His retirement orders are not available. Orders D259-39, Walter Reed Army Medical Center, dated 16 September 2009, removed the applicant from the temporary disability retired list effective 16 September 2009 and permanently retired him with a 40 percent disability rating, in his current rank. The orders indicated that he had NOT completed over 4 years of active service as enlisted or warrant.
6. The Department of Defense Financial Management Regulation (DOD FMR), Volume 7A, states commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes. Such prior service includes all active service, in either the Regular or Reserve Component, or both. Service on active duty or active duty for training for at least 4 years and 1 day satisfies the over 4 years of service requirement under this section.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his retired pay should be corrected to show he retired as an O-3E (a captain with over four years enlisted service) and receive any unpaid retired pay due as a result of this correction.
2. The applicant states his retirement is being paid based on pay grade O-3 rather than O-3E. The available evidence clearly shows he served more than
4 years on active duty as an enlisted Soldier. Therefore, he is entitled to receive retired pay based on pay grade O-3E.
3. In view of the above, the applicant's request should be granted.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___x____ ____x___ ____x___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. amending Orders D259-39, Walter Reed Army Medical Center, dated
16 September 2009 to show the applicant DID complete over 4 years of active service as an enlisted Soldier; and
b. auditing the applicant's military pay records, to include verifying whether he was paid as an O-3E during the time he was on the temporary disability retired list, and paying him any monies due him (to include any due him during the time he was temporarily retired) as a result of this correction.
_______ _ __x_____ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20110010163
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ABCMR Record of Proceedings (cont) AR20110010163
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